State rules Northampton police probe records stay private

NORTHAMPTON — Northampton Police Department records involving an investigation into employee payroll improprieties last year will remain private and are exempt from public disclosure for privacy reasons, according to state Supervisor of Records Shawn A. Williams.

The Gazette filed a public records appeal in December 2013 after Northampton Police Chief Russell P. Sienkiewicz refused to release the records, citing exemptions in the state’s Public Records Law — the privacy exemption and an investigatory exemption.

The latter exemption covers, “investigatory materials necessarily compiled out of public view by law enforcement or other investigatory officials that disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”

The Gazette sought the records in an attempt to provide a fuller explanation of how the Northampton Police Department handled an internal investigation that led to the departure of former police captain Scott A. Savino and administrative assistant Maryann Keating in December 2013.

The pair had been the subjects of a payroll probe conducted by former Hampden District Attorney Mark Mastroianni that began three months earlier. Mastroianni found that Keating had been paid about $18,000 for hours she did not work dating back to 2011 and that Savino was aware of that and “knowingly” verified a “small portion of the unworked hours.”

Savino retired Dec. 13 and Keating, a civilian employee, resigned Dec. 11 after both had been put on paid leave in September.

No criminal charges were brought and under separate agreements with the city, Savino was eligible to receive his pension and $29,000 in accumulated sick leave pay, while Keating was required to pay the city $30,000 in restitution.

Two weeks before the ruling by Williams on May 27, Northampton city attorney Alan Seewald wrote a supplementary letter to the Gazette reinforcing Sienkiewicz’s earlier letter denying access to the internal affairs records. Seewald wrote that the city recognizes that internal investigations with regard to law enforcement officers are not generally exempt as personnel records under the privacy exemption, but that this did not apply in this case because they also involve the personnel records of Keating, who is a civilian employee.

“There is no way that these documents can be disclosed as to Mr. Savino without violating the right of Ms. Keating to privacy in her personnel records,” Seewald wrote to the Gazette.

He continued, “The limited internal investigation conducted within the Northampton Police Department prior to the investigation being taken over by the Massachusetts State Police attached to the Office of the Hampden District Attorney contains only summaries of findings in a disciplinary matter. Such summaries of findings constitute personnel records with regard to both Mr. Savino and Ms. Keating.”

The courts have distinguished between internal police affairs records and personnel records, ruling that the former are public records. In a landmark ruling in 2003, state Appellate Court Judge Joseph A. Grasso wrote in Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester that the internal affairs procedure “fosters the public’s trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself.”

In his ruling, Williams, the supervisor of records, acknowledged the state appeals court has held that records specific to the investigation of a law enforcement officer require separate treatment under the privacy exemption. However, he wrote that in a telephone conversation between Seewald and a member of his staff, Seewald stated that the records sought by the Gazette cannot be disclosed, even in redacted form, in a way that would protect the personnel information related to Keating.

Williams wrote that the Northampton Police Department considers the records personnel in nature as it relates to a disciplinary matter and that it falls within the protection of the privacy exemption in the Public Records Law.

“The fact that certain information relating to the law enforcement officer may, on its own, be subject to disclosure does not limit the Department in exercising its discretion to withhold these records in order to protect personnel information considered exempt from disclosure,” Williams concluded.